John Roberts is legislating from the bench (continued)

Matt K. Lewis Senior Contributor
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A reader emailed me a smart critique of my post, “John Roberts is legislating from the bench.” He writes:

‘Legislating from the bench’ as I understand it originated as political term to essentially attack unpopular decisions or judicial nominees. It is great rhetoric that simplifies things greatly for people, and works no matter what the outcome of the case.

But I think it is a far less useful in context of analysis because it is so imprecise. Your post accusing Roberts of two things: failing to adhere to constitutional originalism, and basically re-writing a law on his own.

The originalism point is sort of a non-starter: Roberts goes out of his way to side with a restricted view of the commerce power, one far more in line with commerce jurisprudence of old than anything a liberal would advocate. And no one would argue, based on a strict reading of the constitution, that the power to tax isn’t absolute: the document basically just says “Congress can power taxes.” Nowhere in the constitution are their limits on the taxing power, as there are on the commerce power. It seems the founders intended this taxing power to be basically untouchable.

As you note, it is the constitutional role of the Court to find laws constitutional if there is any argument they might be — regardless of how politicians justified the law when they were selling the law. Unless you want the Court to have to consider political speeches, judicial history, etc. in making its decisions — which is a highly unusual and aggressive approach — you have to look at the substance of the law, not the imprecise words used by congressmen and political salesmen who did not even go to law school.

But he doesn’t stop there…

Your “re-writing the law” point is equally suspect, since the law did not change at all. It is not as though kids can remain on their parents’ insurance until they are 30 now. Nowhere in the Constitution does it say taxes must be called taxes, or that taxes are limited to activity and not inactivity. Those notions are the product of what you might call judicial activists.

In fact, unless I’m missing something, the argument that you cannot tax inaction — advocated I think in your post — would invalidate most of the country’s tax system. The activity/inactivity distinction in the commerce clause seems clearly not to apply to taxes; Congress can tax and has taxed people for not buying a house or for not getting married.

Roberts could have upheld the law without “legislating from the bench.” It was his decision to call the mandate (and its accompanying fine for those who fail to comply) a tax increase — despite the numerous and repeated claims from Democrats that the fine wasn’t a tax — that earns him the designation of “legislating from the bench.” Had the president owned the ObamaTax through the process — and had the public understood the law as a tax instead of mandate — this would be a different discussion.

But he didn’t — and while Roberts may not have technically re-written the law, he certainly changed how the public perceives it.

UPDATE: Marc Thiessen argues something quite similar in today’s Washington Post:

Roberts effectively redrafted the statute, making the mandate a tax in order to declare it constitutional. As Justices Scalia, Kennedy, Thomas and Alito wrote in their dissent, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Matt K. Lewis